6. Timber trees are those which serve for building 1 Inst. 53 a, or reparation of houses; such as oak, ash, and elm, 2-643. of the age of twenty years and upwards. But where oak or ash are seasonable wood, and have been Vide 22 Vin. Ab. 442. usually cut down at certain periods, it is said that it is not waste to cut them down at that time. 7. By the custom of some countries, certain trees, not usually considered as timber, are deemed to be such, being there used for building. land's Case, Thus it was held in 8 Ja. I., by Lord Chancellor CumberEllesmere, that, in the county of York, birch trees Moo.812. were timber, because they were used for building sheep-houses, cottages, and such mean buildings. And all the Justices at Serjeants' Inn were of opinion that in the county of York birch trees were timber, and belonged to the inheritance; therefore they could not be taken by the tenant for life. 636. 8. Lord King has said, that it was the custom of 2P. Wms. the country that made some trees timber, which generally were not so; as horse-chesnuts and limes. So of birch, beech, and asp.* As to pollards, notwithstanding what was said in Plowden 470. that these were not timber, and that tithes were to be paid of their loppings, which could not be if pollards were timber; yet, if the bodies were sound, he inclined to think them timber. Secus if not sound; they being Hampton, in such case fit for nothing but fuel. Rex v. Minchin 3 Burr. 1308. 9. If a tenant for life tops timber trees, or does 1 Inst. 53 a. any thing else which causes them to decay, it is waste. Dyer, 65 a. So if he suffers the young germins or shoots to be destroyed, or stubs them up. * Walnut trees were formerly held not to be timber: but Lord King appears to have been of opinion that they were timber. Id. There is however no positive decision on this point. 1 Inst. 53 a. Pigot v. 1 Ves. Jun. 479. Pulling down 1 Inst. 53 a. Bro. Ab. 10. Lord Coke says that cutting down willows, birch, beech, asp, maple, or the like, standing in the defence and safeguard of a house, is waste; as also the stubbing up a quickset fence of white thorn, or suffering it to be destroyed. He also states that cutting dead wood is not waste; but that turning of trees to coals for fuel, when there is sufficient dead wood, is waste. 12. Although tenant for life has a right to cut down underwood at proper seasons, according to the custom of the country, yet it was held in a modern case that a tenant for life has no property in the underwood till his estate comes into possession; therefore he cannot have an account of what was cut wrongfully by a preceding tenant. 13. Waste may be done in houses, by pulling them down, or by suffering them to be uncovered, whereby the timbers become rotten. If, however, a house be uncovered, when the tenant comes in, it is no waste to suffer it to fall down; but it would be waste to pull it down, unless it is rebuilt. 14. If a lessee razes the house, and builds a new one, which is not so large as the former, it is waste. But where an old house falls down, and the tenant builds a new one, it need not be so large as the old. 1 Inst. 53 d. 15. If glass windows, though put in by the tenant himself, be broken or carried away, it is waste. Opening Pits or Mines. 1 Inst. 53 b. 54 b. So it is of wainscot, benches, doors, furnaces, and the like, annexed or fixed to the house, either by the reversioner or the tenant. 16. A tenant for life cannot dig for gravel, lime, clay, brick, earth, stone, or the like, unless for the reparation of buildings, or manuring of the land. Nor can he open a new mine; but he may dig and Case, 5 Rep. take the profits of mines that are open. Saunder's 12. 17. Lord King has said, that a tenant for life of Clavering v. Clavering, coal mines may open new pits or shafts for working 2 P. Wms. the old vein of coals, otherwise working the same 388. mines would be impracticable. 18. If a person has mines within his land, and Saunder's Case, 5 Rep. leases the land, and all mines therein, the lessee 12. may dig for them; otherwise he can derive no advantage from them. 2 P. Wms. 19. Where a person seised in fee of lands, in Whitfield which there were mines unopened, conveyed those v. Bewit, lands, and all mines, &c. to trustees and their heirs, 240. to the use of A. for life, &c. A. having threatened to open the mines, the reversioner brought a bill in Chancery to stay him. It was argued on behalf of A. that the mines being expressly granted by the settlement with the lands, it was as strong a case as if the mines themselves were limited to A. for life, and like Saunders's case. But Lord Macclesfield said, that A. having only an estate for life, subject to waste, could no more open a mine, than cut down timber trees. On a rehearing, Lord King was of the same opinion. 20. The conversion of one kind of land into another, as the changing of meadow to arable, is also waste; because it not only changes the course of husbandry, but also the evidence of the estate. Changing the Husbandry. Stewart, 21. The plowing up, burning, and sowing of down land is waste. But in the present improved state of agriculture, I presume the old doctrine respecting infra. the changing the course of husbandry would not be Gunning, strictly adhered to. Gunning v. 2 Show. R. 8. of Heir Looms, 22. As some chattels are considered in law as part Destruction of the inheritance, and called heir looms, so the destruction of them is waste. Thus, if a tenant for life of a park, vivary, warren, or dove house, 2-304. Tit. 1. 7. 1 Inst. 53 a. Permissive 1 Inst. 53 a. Wood v. Gaynon, Amb. 395. 2 Roll. Ab. 820. 1 Inst. 53 b. Moo. 69 kills so many of the deer, fish, game, or doves, that there is not sufficient left for the stores, it is waste. 23. Permissive waste chiefly consists in suffering the buildings on an estate to decay. But if a house be ruinous at the time when the tenant for life comes into possession, he is not punishable for suffering it to fall down; for in that case he is not bound by law to repair it. Yet if he cuts down timber, and therewith repairs it, he may justify; because, the law favours the maintenance of houses. 24. The Court of Chancery will not decree a tenant for life to repair; or appoint a receiver, with directions to repair: for it would tend to harrass tenants for life; and suits of this kind would be attended with great expences, in depositions about repairs. 25. It is a general rule that waste which ensues from the act of God is excusable. So that if a house falls, in consequence of a tempest, the tenant will be excused. But where a house is uncovered by a tempest, the tenant is bound to repair it, within a reasonable time, before the timbers grow rotten. 26. If the banks of a river are destroyed by a Dyer, 33 a. sudden flood, it is not waste. If the banks of the river Trent are unrepaired, it is waste; because the Trent is not so violent but that the lessee, by his industry, may well enough preserve the banks. Of the Ac tion for Waste. 27. By the common law, where lands were granted to a person for life, he was not liable to an action for 2 Inst. 145. waste, unless he was restrained, by express words in his conveyance, from committing waste: because it was in the power of the person who created the estate to impose such terms on his tenant as he thought proper. This doctrine was found extremely incon venient, as such tenants took advantage of the igno rance of their landlords, and committed acts of waste. 28. To remedy this grievance the statute of Marlbridge, 52 Hen. III. c. 24. gave to the owners of the inheritance an action of waste against tenants for life, in which they were entitled to recover full damages for the waste committed. As the recompence given 2 Inst. 144. by this statute was frequently inadequate to the loss sustained, the statute of Gloucester, 6 Edw. I. c. 5. Id. 299.. increased the punishment, by declaring that the place wasted should be recovered, together with treble damages; as an equivalent for the injury done to the inheritance. 29. No person is entitled to an action of waste against a tenant for life, but he who has the immediate state of inheritance, expectant on the determination of the estate for life. If there is an estate of freehold in esse, interposed between the estate of the tenant for life who commits waste, and the subsequent estate of inheritance; then during the continuance of such interposed estate the action of waste is suspended; and if the first tenant for life dies during the continuance of such interposed estate, the action is gone for ever. Inst. 53 b. 218 b. n. 2. Cro. Ja. 688. 30. Where a tenant for life commits waste, and 2 Inst. 302. afterwards assigns over his estate, yet an action of waste may be brought against him. 31. If a woman lessee for life marries, and her Clifton's husband commits waste, and after the wife dies, the Case, 5 Rep. action of waste is gone; for the husband never had any estate but in right of his wife. 32. The statute of Marlbridge only prohibits farmers from committing waste; yet if they suffer a stranger to do waste, they shall be charged with it: for it is presumed in law that the farmer may with 75. |